Citation Nr: 21009737 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-36 267 DATE: February 23, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected asbestos pleural plaques, is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the most probative medical evidence of record demonstrates that the Veteran’s OSA was at least as likely as not aggravated by his service-connected asbestos pleural plaques. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1971 to September 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was before the Board most recently in April 2020 and September 2020. In April 2020, the Board remanded the claim to the agency of original jurisdiction (AOJ) to obtain relevant outstanding medical records and to afford the Veteran a VA examination for his OSA. The Board remanded the matter again in September 2020 in order to procure a nexus opinion as to secondary service connection, supported by an adequate rationale. The Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (see also Donnellan v. Shinseki, 24 Vet. App. 167, 176, stating that substantial compliance, rather than strict compliance, is required). Entitlement to service connection for OSA, to include as secondary to service-connected asbestos pleural plaques Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active duty service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Alternatively, a veteran can receive compensation via secondary service connection, which can be established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To be awarded secondary service connection, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds that the evidence of record supports a grant of service connection for OSA. As an initial matter, there is evidence of a current disability. Multiple clinicians have confirmed the Veteran’s diagnosis of OSA. See, e.g., private medical treatment records dated April 4, 2017. Additionally, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s OSA was aggravated by a service-connected disability. In that regard, the law is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107. To the extent that there is evidence against the claim, the Veteran furnished VA with a sleep apnea Disability Benefits Questionnaire (DBQ) from a private physician, Dr. M.B., who opined that the Veteran’s service-connected pleural plaques “aided in the development of OSA and have permanently aggravated his OSA.” In so finding, she reasoned that pleural plaques are known to increase the risk of restrictive lung disease and noted that research suggests restrictive lung disease is associated with a higher risk of a patient’s developing OSA. In January 2020, Dr. M.B. provided an addendum to her April 2017 opinion. She reiterated her conclusion that the Veteran’s pleural plaques “as likely as not” aided in the development of and have permanently aggravated the Veteran’s sleep apnea. Dr. M.B. reasoned that the Veteran was “as likely as not” suffering from pleural plaques, caused by in-service exposure to asbestos, without an official diagnosis prior to receiving a diagnosis of OSA. As Dr. M.B. interviewed the Veteran, reviewed his full and relevant medical history, and provided a well-reasoned rationale for her conclusion that the Veteran’s pleural plaques aggravated his OSA, the Board finds the opinion of Dr. M.B. to be the most probative evidence in the matter at hand. Based on the foregoing, the Board therefore concludes that, with the benefit of the doubt resolved in the Veteran’s favor, a grant of service connection for OSA is warranted. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.